For people my age, the freedom to get drunk or high and then have sex with someone was a right guaranteed by the sexual revolution of the Sixties.
A great number of my friends (both genders) vigorously exercised that right, knowing it was not something our parents or their parents were especially free to do, particularly the women. Heaven knows that much of the world, beginning with Islamic societies, still discourages or forbids such behavior. Oh, and also Yale University. At Yale, in 2014, if you're inebriated and decide to indulge your lust, the act is considered non-consensual sex. Which is another term for rape. It's punishable by expulsion.

What I find most annoying about the way the writer approached this subject is he finds the initiatives laudable because he has a daughter and frightening because he has a son. I wonder if he has given any real thought to what he's saying with that.

I find the assertion that it is a "right" to have sex with someone who is heavily intoxicated more than troubling. Because that is the implication. They are quite disingenuously taking it from the angle of "they're saying I can't get drunk and have sex" rather than the true position of the campus (and the law) of "you can't have sex with someone who you know to be incapable of giving knowing consent and call it consent."

Yes, it leads to some quandaries when both parties are drunk, but then Yale isn't the justice system. This, incidentally, is why the military will often dispose of such cases through Non-Judicial Punishment rather than court-martial (which is the equivalent to a civilian criminal court) because at NJP a CO can say "well, it's A's word vs. B's that B raped A and I believe A, so I find B guilty" whereas at a court-martial they'd have to acquit if that was the only evidence/testimony. This is also why it would be a bad idea to require all reported sexual assault cases to be heard at court-martial: you may end up only increasing the number of outright acquittals. Regular rules of evidence don't apply at NJP (also probably not at Yale) but they sure as hell do at court-martial.

I find the assertion that it is a "right" to have sex with someone who is heavily intoxicated more than troubling. Because that is the implication. They are quite disingenuously taking it from the angle of "they're saying I can't get drunk and have sex" rather than the true position of the campus (and the law) of "you can't have sex with someone who you know to be incapable of giving knowing consent and call it consent."

Yes, it leads to some quandaries when both parties are drunk, but then Yale isn't the justice system. This, incidentally, is why the military will often dispose of such cases through Non-Judicial Punishment rather than court-martial (which is the equivalent to a civilian criminal court) because at NJP a CO can say "well, it's A's word vs. B's that B raped A and I believe A, so I find B guilty" whereas at a court-martial they'd have to acquit if that was the only evidence/testimony. This is also why it would be a bad idea to require all reported sexual assault cases to be heard at court-martial: you may end up only increasing the number of outright acquittals. Regular rules of evidence don't apply at NJP (also probably not at Yale) but they sure as hell do at court-martial.

AFAIK, courts martial don't work differently than the civilian criminal courts as far as the standard of proof. A's word vs B's word doesn't mean you have to acquit, if the fact finder believes A. It's not like you have to give all testimony equal weight, and the winner is the side that calls one more witness than the other. It's always about who the fact finder believes. It would only be if the fact finder didn't know who to believe, or wasn't fully convinced by A, that they would have to acquit.

What I find most annoying about the way the writer approached this subject is he finds the initiatives laudable because he has a daughter and frightening because he has a son. I wonder if he has given any real thought to what he's saying with that.

Wouldn't it be great if his son read the article and said "Dad, WTF, why would I want to have sex with someone who's too drunk to consent? That's sick."

Wouldn't it be great if his son read the article and said "Dad, WTF, why would I want to have sex with someone who's too drunk to consent? That's sick."

Well, what's considered "too drunk to consent"? Obviously someone who has drunk him or herself to the point where they have no idea what they're doing can't consent. But if she's just had one beer? How about two? Do you measure BAC and figure "too drunk to drive" = "too drunk to consent"?

I suppose you have to kind of have to err on the safe side and assume consent is invalid if the person shows any impairment at all. (Of course, since it's not at all unlikely both parties have had a few, that judgement may not be so cut-and-dried.)

Ideally, I guess if you want to combine sex and alcohol, you get the consent before either of you start drinking....

I think the vague nature of what it means to be "incapacitated" by alcohol is a potential problem. It can be potentially confusing for the students who need to follow it, and it opens these policies up to criticism and ridicule from people like this columnist.

For example, here is the Yale policy on incapacitation in the link from the OP article:

Quote:

Consent cannot be obtained from someone who is asleep or otherwise mentally or physically incapacitated, whether due to alcohol, drugs, or some other condition. A person is mentally or physically incapacitated when that person lacks the ability to make or act on considered decisions to engage in sexual activity. Engaging in sexual activity with a person whom you know -- or reasonably should know -- to be incapacitated constitutes sexual misconduct.

Obviously if someone is borderline incoherent due to alcohol intoxication, they are incapacitated and unable to consent. And equally obviously, a typical person who had a drink at dinner is not incapacitated. But there is a large gray area in between.

Here the line is when they "lack the ability to make or act on considered decisions to engage in sexual activity." But what exactly is a considered decision? And how well can one person judge the ability of another to make a considered decision?

Again, there is common sense on both ends, but it gets tricky in the middle.

Edit: To elaborate, let's look at the stages of ethanol intoxication, snipped from a wikipedia article:

Quote:

Ethanol's acute effects are due largely to its nature as a central nervous system depressant, and are dependent on blood alcohol concentrations:

And the answer is to choose a cut-off point where you, and any other reasonable observer, are certain your partner is not too impaired to give meaningful consent. If you're not sure, err on the side of not raping someone.

If one person cannot tell if the other person is incapacitated or not, it's best to consider them incapacitated. He or she may not get to have sex that night, but the upside is that they definitely haven't raped someone.

There is some research out there (cited here and here) that a small percentage of rapists (who admit to multiple assaults) actually seek out and prey upon victims that they know are too drunk to consent.

And the answer is to choose a cut-off point where you, and any other reasonable observer, are certain your partner is not too impaired to give meaningful consent. If you're not sure, err on the side of not raping someone.

That's not an answer. It still leaves the terms poorly defined. If someone says "Be 99% sure of it," there is still the question of "Be 99% sure of what, exactly?"

In addition, there is still the matter of enforcing the policy, where relying on being "certained they are not impaired" and "erring on the side of not raping someone" is potentially problematic, as that would imply erring on the side of guilt.

Also, I'd appreciate it if you'd not use the second person in this case. I know it is not your intent, but it feels a bit like a personal attack.

Sorry, Jahungo; I should have said g-you. Absolutely not my intent to implicate you personally at all.

It's not meant as an answer to enforcement; it's meant as an answer to the personal question of whether g-you should choose to have sex or not. If g-you're not sure whether the person g-you are about to have sex with is or isn't too drunk to consent, don't.

That's not an answer. It still leaves the terms poorly defined. If someone says "Be 99% sure of it," there is still the question of "Be 99% sure of what, exactly?"

In addition, there is still the matter of enforcing the policy, where relying on being "certained they are not impaired" and "erring on the side of not raping someone" is potentially problematic, as that would imply erring on the side of guilt.

What do you mean erring on the side of guilt?

I'm wondering how often you're around intoxicated people because while there might be some "gray" area of drunkenness where someone can seem okay but are well on their way to complete inebriation, it's usually only for a very short amount of time. Usually, from what I've seen based on college aged drinking habits, less time for someone to meet, flirt enough to get to the "wanna see a thing in my room" stage, and leave the social situation to get alone.

While not everyone is the same, there is a definite point where you can tell when someone is not capable of making decisions for themselves. Their eyes are droopy, speech is slurred, and they can't answer questions meaningfully. They often repeat something they were saying earlier in the evening and their reactions are inappropriate (crying for no reason) or severely delayed. It's not about BAC, it's about looking to the person I want to have sex with and seeing if they're really intoxicated.

Exactly. Intoxication to the point of not being competent to consent is going to be a high level of intoxication, and the evidence, if we're talking about a criminal case will primarily be how the person was behaving. There may also be evidence of how many drinks the victim had, but it would be a very very rare case where there would be BAC levels available as evidence. So it will be a totality of the circumstances type of decision, made by a jury or judge at trial as long as there's enough evidence to get to a trial. It's how the criminal prosecution side of this goes.

But the advice to young people should be as Chloe and Ellestar said, both to avoid raping someone and to avoid being a ****** even when it wouldn't count as rape. If one believes that the person one wants to have sex with has significantly impaired judgment, then one should probably not have sex with that person.